Considered and decided by Schumacher,
Presiding Judge; Shumaker, Judge;
and Parker, Judge.*

S Y L L A B U S

A defendant's statement to police
taken in violation of Miranda may be used to impeach the defendant's
trial testimony even if the statement's only impeachment value is its omission
of some details a suspect could ordinarily be expected to relate.

O P I N I O N

ROBERT H. SCHUMACHER, Judge

This appeal is from a conviction
of one count of third-degree criminal sexual conduct, Minn. Stat. § 609.344,
subd. 1(d) (2002) (prohibiting sexual intercourse when complainant physically
helpless). Appellant Saye Lawrence
Whittle argues that the trial court abused its discretion in limiting his
cross-examination of the victim and in allowing the state to impeach him with a
prior statement that was not truly inconsistent with his trial testimony. We affirm.

FACTS

Whittle was charged with third-
and fourth-degree criminal sexual conduct for allegedly having sexual
penetration and sexual contact with two women, K.K. and N.M., while the women
were asleep following a party at their house.
Whittle, who was a guest at the party, claimed the women were not asleep
and that the sexual conduct, in each case, was consensual.

Before trial, the state brought a
motion to exclude any reference to K.K.'s belief that she was on probation at
the time of the party. The defense
sought to cross-examine K.K. on the subject to support a theory that K.K. was
motivated to claim the sexual conduct was criminal in order to shift the focus
from her own use of cocaine, which she could have believed was a violation of
her probation. As an offer of proof,
the defense presented a computer printout showing that K.K. had been arrested
on November 23, 2001, in North Dakota, charged with "hindering law
enforcement," a Class A misdemeanor, and may have been placed on
unsupervised probation, and that she would not have been discharged from
probation until after the charged offense occurred.

The trial court ruled that the
defense could not impeach K.K. with her North Dakota probationary status
because the evidence was "too remote," and the potential prejudice to
the state's case outweighed its probative value.

K.K. testified
that she was living in a south Minneapolis house with four other women in March
2002. One Friday night, after working
all day as a waitress, she got a call from Don Coquillette, a friend of the
women at the residence, and agreed to meet him at a Minneapolis bar. One of K.K.'s roommates accompanied
her. At the bar, they met Coquillette
and Whittle, whom they had never met before.

At some point it
was agreed that they would try to buy some cocaine that night. After Coquillette could not locate any
cocaine, the four of them drove to the women's home to make more calls. They eventually located N.M., another
roommate, at a party where, she told them, she had obtained cocaine. After driving to the party and picking up
N.M., they returned to the women's home, intending to use the cocaine. K.K. testified that all five of them used
the cocaine, while partying mostly in N.M.'s large master bedroom.

K.K. testified
that at about 5:00 a.m. she closed the door to her bedroom, which was next to
N.M.'s, changed into her pajamas, and went to sleep. She testified that she
woke later to find Whittle on top of her, having vaginal intercourse with
her. She tried to push him off of her,
eventually succeeding, got dressed and left for work. But after realizing she was too upset to work, she drove to her
family's home in North Dakota, where after taking a nap she described the
sexual assault to her older sister. She
did not, however, tell her sister that she had used cocaine during the party.K.K. also failed to tell police about
the cocaine use until after Minneapolis police learned this from others present
and asked her about it.

N.M. testified
that she had gone to a party on March 29, 2002, at a friend's house and
reported to K.K. and the others over the telephone that she had access to some
cocaine. When the other four drove her
back to the women's home, they drank beer and "hung out" in N.M.'s
bedroom listening to music.

N.M. testified
that after K.K. went to her own bedroom, Coquillette went into the living room,
and she went to the kitchen to finish her beer, with Whittle accompanying
her. She returned to her bedroom alone
and lay on her bed in her clothes and fell asleep. N.M. testified that she awoke to find her pants unzipped, her
panties rolled down, and Whittle performing oral sex on her. Whittle was
performing oral sex on her. She told
him to get off, which he eventually did.
N.M. testified that she was "shocked" and denied that she had
been flirting with Whittle that evening.

Coquillette
testified for the state, indicating, contrary to Whittle's later testimony, that
the four of them drove from the bar to Coquillette's house. Coquillette testified that there was no
flirting between Whittle and either K.K. or N.M.

After the state
completed its case-in-chief, the prosecutor gave notice that, if Whittle chose
to testify, he intended to impeach him with his statement to police. Defense counsel argued that police had
misstated the Miranda warning before obtaining the statement and that
one officer had pressured Whittle into talking while driving him to jail
following his arrest.

After viewing the videotape of Whittle's statement,
the court ruled that the state could use it to impeach him. The court noted that the statement was given
voluntarily and was exculpatory.

Whittle testified
that he went to the bar about midnight and met K.K., her roommate, and
Coquillette. Whittle testified that,
instead of all four driving to Coquillette's house, as K.K. had testified, he
and Coquillette walked while K.K. and her roommate drove together. He testified that Coquillette wanted to talk
to him and assured him that K.K. and her roommate were "cool" and
that they liked going out with black guys.
Whittle testified that during the evening K.K. was flirting with him and
"showing her butt." He
testified that when they drove back from N.M.'s friends' party, he sat in the
front seat of the car with N.M. in his lap.

Whittle testified
that when they arrived at the women's home, he put his coat in K.K's bedroom,
at her suggestion, that he spent time in the bedroom with her and thought she
was interested in him. He testified
that he engaged in mutual kissing with N.M. in her bedroom until N.M. told him
to stop and that he asked K.K. if he could sleep with her. Whittle testified that K.K. agreed and that
she changed into her pajamas and they had consensual sex. He testified that Coquillette entered K.K.'s
bedroom after he and K.K. had stopped having sex. Coquillette, however, did not corroborate this, testifying that
he saw no signs of physical affection involving Whittle and that he encountered
Whittle in the hallway early in the morning, not in K.K.'s bedroom. Whittle denied that he saw either K.K. or
N.M. asleep that night. He admitted
that he had been convicted in 1996 of giving a false name to a police
officer.

On cross-examination, Whittle
admitted that he had not told Sergeant Hogquist, in his taped statement, that
K.K. had had any tequila the night of the party. Whittle also admitted that he had not said anything about smoking
marijuana in his statement. On
re-direct, Whittle testified that Hogquist said he was not interested in the
cocaine use or what people were drinking that night.

The jury found Whittle guilty of
the first count, charging sexual penetration committed against K.K., and
acquitted Whittle of the counts charging him with sexual penetration and
sexual contact committed against
N.M. The trial court sentenced Whittle
to 44 months in prison.

ISSUES

1. Did the trial court abuse its discretion in ruling the
defense could not question K.K. about her probationary status?

2. Did the court abuse its discretion in
ruling the state could impeach Whittle with omissions from his statement to
police?

ANALYSIS

Whittle
argues that the trial court erred in two of its evidentiary rulings, entitling
him to a new trial. Appellate courts
review the trial court's evidentiary rulings for a clear abuse of discretion,
recognizing that evidentiary matters rest within the sound discretion of the
trial court. State v. Amos, 658
N.W.2d 201, 203 (Minn. 2003). Whittle
has the burden of showing not only that the trial court abused its discretion,
but also that he was thereby prejudiced.
Id.

1. Whittle
argues that the trial court abused its discretion in ruling the defense could
not cross-examine K.K. about her alleged unsupervised probationary status in
North Dakota at the time of the offense.
Whittle argues that this evidence was admissible to show K.K.'s bias and
her motivation in accusing him of criminal sexual conduct.

The
supreme court has noted: "In
criminal cases, the Confrontation Clause contemplates a cross-examination of
the witness in which the defendant has the opportunity to reveal a prototypical
form of bias on the part of the witness."
State v. Lanz-Terry, 535 N.W.2d 635, 640 (Minn. 1995). "Bias" generally refers to
"the relationship between a party and a witness" that might cause the
witness to "slant, unconsciously or otherwise, his testimony in favor of
or against a party." United
States v. Abel, 469 U.S. 45, 52, 105 S. Ct. 465, 469 (1984). K.K.'s probationary status had no
relationship to Whittle, but Whittle argues that it created a form of
self-interest motivating K.K. to accuse him.
"Self-interest" is generally recognized as a source of
partiality that may be used, along with bias directed at a party, to impeach the
witness. I Charles T. McCormick, McCormick
on Evidence, § 39, at 146-47 (John W. Strong, et al. eds., 5th ed.
1999); see Abel, 469 U.S. at 52,
105 S. Ct. at 469 (stating bias may be induced "by the witness'
self-interest").

The problem with Whittle's argument
is that it was obviously in K.K.'s self-interest, regardless of her
probationary status, to omit any reference to cocaine use from her statement to
police simply because using cocaine is a criminal offense. K.K.'s alleged probationary status, therefore,
had little probative value as impeachment evidence. The use of cocaine was also something that K.K. apparently knew
would offend her family because she did not disclose it to her sister or mother
either. That provided a secondary
reason to conceal the cocaine use from police.
K.K.'s alleged probationary status was merely an additional possible
reason for nondisclosure, and one that posed the risk of unfairly prejudicing
the state's case.

Thus,
this is not a case in which the proposed method of impeachment was the only way
of eliciting a particular form of bias or self-interest. See generally State v. Greer, 635
N.W.2d 82, 89 (Minn. 2001) (noting that evidence that is only marginally useful
to show bias may be excluded); cf.
Olden v. Kentucky, 488 U.S. 227, 232, 109 S. Ct. 480, 483 (1988) (holding
that proposed line of cross-examination of complainant to show her extramarital
relationship, which might have been jeopardized if sex with defendant was
consensual, should have been permitted).

As
the state points out, another flaw in Whittle's argument is that K.K.'s
allegation of a sexual assault was the means by which the cocaine use was revealed,
not a way for K.K. to conceal it.
If the order of events were reversed, and K.K.'s use of cocaine had been
disclosed first, she might have had an interest in minimizing or diverting
attention from that offense by fabricating a rape allegation. But that is not what occurred.

Relevant evidence may be
excluded if its probative value is outweighed by the potential for unfair
prejudice, confusion of issues, misleading the jury, or needlessly presenting
cumulative evidence. Minn. R. Evid.
403. When balanced against its
cumulative, and rather minimal, probative value, the potential of K.K.'s
alleged North Dakota probation for unfair prejudice, for distracting the jury
by injecting the issue of K.K.'s past criminal conduct, and for wasting time on
a peripheral issue was simply too great to support its admission. We conclude that the trial court was well
within its discretion in excluding this evidence.

2. Whittle also argues that the trial
court abused its discretion by ruling the prosecution could impeach him with
his statement to police, which Whittle argues was not inconsistent with his
trial testimony. The trial court, after
reviewing the tape of Whittle's statement to police, concluded that the
statement was voluntary and exculpatory and could be used by the prosecutor for
impeachment. On appeal, Whittle
concedes that even if there were a Miranda violation in the course of
the interrogation, Whittle's statement would be admissible for impeachment
purposes. See State v. Slowinski,
450 N.W.2d 107, 111 (Minn. 1990). He
argues, however, that the statement was not truly impeaching because there was
nothing in it that was inconsistent with Whittle's trial testimony.

The
prosecutor impeached Whittle with his failure to tell police in his statement
that K.K. drank tequila at the house the night of the apartment, or that the
partygoers had smoked marijuana, or that the partygoers were "real
tired" by the time they went to bed.
Whittle does not refute the state's argument that witnesses may be
impeached by their prior failure to state a fact. A witness's failure to state a fact in a previous account of the
incident in question may, under the circumstances, be considered
impeaching. See Jenkins v. Anderson,
447 U.S. 231, 239, 100 S. Ct. 2124, 2129 (1980). This court has held, for example, that a defendant could be
impeached with his failure, after his arrest, to tell police that a companion
had planted the gun on him. State v.
Houston, 654 N.W.2d 727, 735-36 (Minn. App. 2001), review denied (Minn. Mar. 26, 2003).

The
scope of cross-examination is largely left to the discretion of the trial court
and will not be reversed absent a clear abuse of discretion. State v. Dille, 258 N.W.2d 565, 569
(Minn. 1977). Whittle cites no
authority requiring closer scrutiny of the impeachment value of a prior
statement when the defendant's Miranda rights have been violated. Whittle is not raising a hearsay challenge
to the use of the statement. See Minn.
R. Evid. 801(c) (defining hearsay as out-of-court statement offered "to
prove the truth of the matter asserted"), (d)(2)(A) (providing that
party's own statement is not hearsay).

The
state did not present Whittle's statement to police as a prior inconsistent
statement admissible for substantive purposes.
Thus, we are presented only with the question whether the trial court
clearly abused its discretion in determining that Whittle's failure to mention
certain facts in his statement to police had sufficient impeachment value to
warrant the use of that statement in cross-examination.

K.K.'s
drinking tequila, or the partygoers' use of marijuana, or the fact that they
were "real tired" by the time they went to bed, are not essential
exculpatory details, as the "planting" of the gun was in Houston. But it was in Whittle's interest to bring
out any facts casting doubt on the complainants' ability to accurately perceive
or relate what occurred at the women's home.
Certainly, their degree of fatigue and their consumption of alcohol and
drugs could have affected the credibility of complainants' allegations. It was within the trial court's broad
discretion to conclude that Whittle's omission of these details had sufficient
impeachment value to warrant their use in cross-examination.

We note that Whittle's argument
that these details were not sufficiently impeaching necessarily implies their
admission was not significantly damaging to the defense case. Thus, even if the trial court abused its
discretion, we would conclude, based on the limited impeachment value of the
details omitted and on the strength of the state's evidence, that there is no
reasonable possibility that this evidence significantly affected the jury's
verdict. See generally State v. Post,
512 N.W.2d 99, 102 n.2 (Minn. 1994).

The impeaching omissions went to
the peripheral details of the evening – what people were drinking or what drugs
they were using. The other witnesses'
testimony went to more critical facts – whether there was flirting, or a
sexually-charged atmosphere, and particularly whether Coquillette witnessed
consensual sexual activity involving Whittle and K.K. Even with respect to the accuracy of K.K.'s perceptions, her use
of tequila and marijuana and her degree of fatigue would be merely cumulative
to evidence that she used cocaine, consumed other alcoholic drinks, and was
partying into the early morning after getting off from work.

D E C I S I O N

The trial
court did not abuse its discretion in ruling K.K. could not be impeached with
her probationary status in North Dakota or in ruling that the state could
impeach Whittle with his omission of several details from his statement to
police.